COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69048 ALEX & DOLORES SOLTESZ, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION RALPH DiCAMILLO, DBA : D & D CEMENT, ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 15, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 256293 JUDGMENT : AFFIRMED IN PART, REVERSED : IN PART AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Martha V. Yeager 400 Terminal Tower Cleveland, Ohio 44113 For defendant-appellee, Ralph Charles A. Nemer DiCamillo, dba D & D Cement 2000 Standard Building Company: Cleveland, Ohio 44113 John G. Farnan Daniel A. Richards WESTON, HURD, FALLON, PAISLEY & HOWLEY 2500 Terminal Tower Cleveland, Ohio 44113-2241 For defendant-appellee, Alan S. Sims The Cincinnati Insurance Charles R. Olsavsky Company: ULMER & BERNE Bond Court Building, Suite 900 1300 East Ninth Street Cleveland, Ohio 44114-1583 For defendant-appellee, Christine Hovis Sukel City of Maple Heights: 6480 Rockside Woods Boulevard, South Suite 210 Independence, Ohio 44131-2284 For defendant-appellee, David J. Fagnilli Beacon Insurance Company DAVIS AND YOUNG CO., L.P.A. of America: 1700 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115 -3- NAHRA, J.: In this action which resulted from their dissatisfaction with the repair of their driveway, plaintiffs-appellants Alex and Dolores Soltesz appeal the trial court orders which granted the separate motions for summary judgment filed by defendants- appellees Ralph DiCamillo, d.b.a. D & D Cement ("DiCamillo"), The Cincinnati Insurance Company ("Cincinnati"), and the City of Maple Heights ("the City"). Appellants also appeal the dismissal of the Beacon Insurance Company ("Beacon") from the action. In the spring of 1992, appellants sought estimates from contractors for the repair of their driveway. One of the contractors appellants telephoned in this regard was appellee DiCamillo. At appellants' request, he came to their house, looked at the existing driveway and its drainage, and presented appellants with a written estimate to replace the driveway and one drainpipe from a downspout on the house. The estimate was between $4,100.00 and $4,200.00. Appellants told DiCamillo the price was acceptable; however, prior to DiCamillo's commencement of the work, appellants changed their minds and stated to DiCamillo they had been quoted a lower price by another contractor. Approximately a month later, appellants telephoned DiCamillo and asked if he would do the work at a lower price. The amount eventually agreed upon was $3,800.00. DiCamillo applied to the City for a permit to commence work on the driveway. Apparently, DiCamillo stated the work's estimated cost at a significantly lower -4- amount than $3,800.00. Moreover, he did not state that a drainpipe would be replaced. In connection with his application, DiCamillo obtained a license bond with Cincinnati. The bond listed DiCamillo as the principal, Cincinnati as the surety, and the City as the "Obligee." In pertinent part, the bond stated that DiCamillo "will conform in all respects to the ordinances and building codes of the Obligee while performing GENERAL CONTRACTING work," otherwise, Cincinnati's obligation on the bond would be "in full force and effect." The City subsequently issued the permit. In May 1992, DiCamillo commenced work on appellants' driveway. During the course of the job, in addition to the drainpipe to the house's downspout, he replaced a drainpipe coming from appellants' garage. DiCamillo neither mentioned this "extra" repair to appellants nor requested a different amount of money from them. Upon completion of the work, DiCamillo notified the City, which sent an inspector to the site. Apparently, although the inspector could not view the drainage work which had been done, DiCamillo was not cited for any failure to comply with the City's codes. Appellants paid DiCamillo the agreed-upon amount of $3,800.00. Shortly thereafter, appellants began experiencing water problems in their basement. They requested the City's building inspector to review the situation. It can be gleaned from the record that thereafter DiCamillo was notified of some deficiency in -5- the work but refused to do any additional work at the site without additional compensation. In October, 1992, appellants again complained to the City. In response, three more City inspectors and a councilman came to the site. It can be inferred from the record that an excavation of the driveway was made; from this inspection, it was apparently discovered that drainpipes had been installed "going in the wrong direction," and that pipes had been improperly sealed. The record reflects that appellants later made a demand on the City to reimburse them for their additional expenses from the license bond issued by Cincinnati. Subsequently, the City notified DiCamillo that an ordinance had been violated in connection with the work on appellants' driveway. DiCamillo was instructed to correct "defects in workmanship" and to "reimburse" appellants. The City also notified Cincinnati of appellants' demand with regard to the license bond. Appellants, however, received no satisfaction from any of the avenues they had pursued. On August 5, 1993, therefore, they filed an action in the Court of Common Pleas. Against DiCamillo, individually and d.b.a. D & D Cement, appellants alleged six causes of action as follows: 1) deceptive trade practices in violation of R.C. 1345.02(B)(1) and O.A.C. 109:4-3-05(A)(1) and (9); 2) unconscionable sales practices in violation of R.C. 1345.03(A) and (B)(1) and (6); 3) violation of R.C. 1345.28 (the home solicitation sales act); 4) negligence, both in failing to obtain a permit to install and in installing -6- drainpipes; 5) negligence per se in failing to comply with the City ordinance which required work to be in conformance with trade standards; and 6) breach of contract. In addition, appellants stated a cause of action against the City in negligence for failing to enforce its violation notice against DiCamillo. Both DiCamillo and the City filed answers to appellants' complaint. Subsequently, the City filed a cross-claim against DiCamillo for indemnity and contribution. On May 5, 1994, appellants filed an amended complaint. Therein, appellants added Cincinnati as a party-defendant and alleged a cause of action against it based upon the license bond issued to the city, stating that Cincinnati was "liable" to them "to the extent that [DiCamillo was] liable" to them. A copy of the license bond was attached to the amended complaint. One month later, Cincinnati filed its answer to the amended complaint, together with cross-claims against DiCamillo on the bond and the City for indemnity and contribution. Soon thereafter, on different days, the trial court issued two separate judgment entries, both of which set the same schedule for the filing of dispositive motions in the case. On June 28, 1994, DiCamillo filed a third-party complaint against his insurer, Beacon, seeking a declaratory judgment that Beacon had a duty to defend him in the action. Beacon duly filed an answer denying the allegations of DiCamillo's third-party complaint, attaching thereto a copy of its contract with DiCamillo. -7- On November 9, 1994, the City filed a motion for judgment on the pleadings. In its brief in support of the motion, the City argued it was immune from appellants' suit pursuant to R.C. 2744.02(A)(1). On December 7, 1994, the trial court issued a judgment entry stating the City's motion would be "converted" to a motion for summary judgment. In the same entry, the trial court also set dates for the following: 1) appellants' response to the City's motion; 2) Cincinnati's dispositive motion and appellants' response thereto; 3) Beacon's dispositive motion and "any" party's response thereto; 4) DiCamillo's motion for summary judgment on "any cause of action" and appellants' response thereto; and 5) the next pretrial. In January, appellants' attorneys of record withdrew from the case; however, at the same time, in compliance with the trial court's judgment entry, they filed appellants' brief in opposition to the City's motion for judgment on the pleadings. No evidentiary materials were attached to the brief; appellants simply argued the enactment of R.C. 2744.02 did not preclude the common law "public duty" rule. The trial court's acknowledgement of counsel's withdrawal included an order to appellants to obtain new counsel "forthwith." Soon thereafter, the City notified the trial court that it had changed counsel. Moreover, the record reflects that DiCamillo too changed counsel; with his notification of this event, DiCamillo -8- requested the trial court grant him an extension of time to file his dispositive motion. On January 19, 1994, the trial court granted the City's motion "against [appellants'] amend[ed] complaint," stating that the City was immune from appellants' suit. Four days later, the trial court denied DiCamillo's motion for an extension of time, stating that the case would not be "delayed" due to a change of counsel. However, in the same judgment entry, the trial court ordered DiCamillo's dispositive motion to be filed by March 1, 1995, rather than its previously ordered date of February 1. On January 31, 1995, Cincinnati filed a motion for summary judgment. Cincinnati argued it was entitled to judgment on appellants' amended complaint because appellants were not named as obligees on the bond. On February 27, 1995, appellants' newly-retained counsel notified the trial court of her appearance in the case and moved for an extension of time to respond to Cincinnati's motion for summary judgment. On March 1, 1995, DiCamillo notified the trial court he had retained yet another counsel. Counsel moved for a thirty-day extension of time to file a motion for summary judgment, representing to the trial court he could prepare and file it by March 31, 1995. That same day, the trial court issued an order stating the third-party complaint against Beacon was dismissed with prejudice. -9- On March 7, 1995, the trial court granted appellants a thirty- day extension with regard to Cincinnati's motion for summary judgment, permitting them to respond by April 1. On March 21, 1995, DiCamillo filed a motion for summary judgment which was supported by a brief and his affidavit; DiCamillo argued appellants could support none of their causes of action against him. On April 3, 1995, appellants filed a "motion in opposition" to Cincinnati's motion for summary judgment. Therein, appellants argued the license bond between Cincinnati and the City was intended for their benefit, therefore, they could recover on it. To their motion, appellants attached their affidavits and several unverified "exhibits." One document purported to be a copy of the building permit issued by the City to DiCamillo. The others apparently were copies of letters sent by or to City officials regarding appellants' driveway problems. On April 4, 1995, the trial court granted Cincinnati's motion for summary judgment "as to all claims asserted against it." On April 18, 1995, appellants moved for an extension of time 1 to respond to DiCamillo's motion for summary judgment. On April 20, 1995, Cincinnati filed a motion to strike appellants' "motion in opposition," asserting appellants' exhibits 1 Appellants mistakenly captioned the motion with Beacon's name, although the body of the motion clearly stated appellants' request pertained instead to DiCamillo. -10- failed to comply with the requirements of Civ.R. 56(E). The trial 2 court later issued an order denying the motion as moot. On April 24, 1995, appellants filed a "motion in opposition" to DiCamillo's motion for summary judgment. Initially, appellants argued DiCamillo's motion should be denied as "untimely," citing 3 Loc.R. 8. Appellants also argued the evidence indicated material issues of fact remained as to each of their claims. Appellants attached to their brief copies of the same affidavits and unverified documents they had attached to their previously-filed "motion in opposition." In addition, one document purported to be from an engineer who opined DiCamillo's driveway installation was "faulty." On April 25, 1995, the trial court issued an order granting DiCamillo's motion for summary judgment. Therein, the trial court 2 The order was dated April 28, 1995. 3 The trial court's Loc.R. 8 states in pertinent part: RULE 8. PLEADINGS AND MOTIONS * * * (C) Civil Rule 12, prescribing time requirements for pleadings, will be enforced. However, parties may obtain an extension of time, not to exceed thirty (30) days in which to answer, plead or otherwise move, when no prior extension has been granted, by filing with the clerk a written stipulation approved by all counsel providing for an extension. The stipulation shall affirmatively state that no prior extension has been granted. Neither the stipulation nor any entry shall be submitted to the Court for the initial extension. If no stipulation is obtained, or if an additional extension beyond the initial stipulated period is requested, the party desiring an extension must obtain the approval of the Court. -11- noted DiCamillo's motion was "unopposed" and there was no "dispute of fact." However, in an order dated May 1 but not received for filing until May 4, 1995, the trial court issued a second judgment 4 entry with a full opinion in regard to the same subject matter. In its opinion, the trial court chided appellants for their untimely response to Cincinnati's motion and their "confusing" labeling of their briefs in opposition to appellees' motions for summary judgment. The trial court further stated it had now taken into consideration appellants' response to DiCamillo's motion but "based upon the evidentiary quality [of the] submissions of the parties" and "upon the undisputed fact[s]," DiCamillo was entitled to judgment as a matter of law. The trial court stated this entry was a "final judgment within the meaning of R.C. 2505.02." Appellants timely filed their notice of appeal in this court from the final judgment below. I. Appellants present nine assignments of error for review, which are not separately argued as required by App.R. 16(A)(7). The first follows. THE COURT IMPROPERLY CONSIDERED APPELLEE RALPH DICAMILLO'S MOTION FOR SUMMARY JUDGMENT WHEN IT WAS FILED 4 The confusion of the filing dates thereafter continued: in an order dated May 2, 1995 but not filed until May 9, the trial court issued a judgment entry stating all claims had been adjudicated but that it was again considering DiCamillo's motion for summary judgment in light of appellants' response. Furthermore, on May 5, 1995, appellants filed a motion to "set aside" the order of April 25, 1995, which the record indicates the trial court also considered and later ruled upon. -12- ON MARCH 1, 1995, AND THE COURT HAD PREVIOUSLY ENTERED A JOURNAL ENTRY ON JANUARY 23, 1995, ORDERING A DISPOSITIVE MOTION THAT NO ADDITIONAL TIME WOULD BE ALLOWED EITHER SIDE FOR THE FILING OF DISPOSITIVE MOTIONS. Although inarticulately stated, appellants essentially argue that since the trial court earlier had issued a ruling setting a cut-off date for the filing of DiCamillo's motion for summary judgment, it should not thereafter have considered the motion. Appellants' argument overlooks several facts. First, the record reflects that as the case progressed, the trial court issued several orders which rescheduled the cut-off dates for the filing of motions. Second, appellants themselves requested and were granted an extension of time with regard to the cut-off date for the filing of their response to Cincinnati's motion for summary judgment. Third, DiCamillo requested leave of the trial court for an extension of time to file his motion. The request was accompanied by a brief with good reason set forth as its basis. Moreover, although DiCamillo requested a thirty-day extension, the motion was filed only twenty-one days later. Furthermore, appellants were not prejudiced by the late filing of the motion. Fourth, a trial court has discretion to modify its orders during the course of proceedings before it. Civ.R. 16. See, also, e.g., Huebner v. Miles (1993), 92 Ohio App.3d 493; Body, Vickers & Daniels v. Custom Machine, Inc. (1991), 77 Ohio App.3d 587. A review of the record demonstrates the trial court did not abuse its discretion in this case. The trial court attempted to -13- move the proceedings along, but as circumstances changed, it adapted its orders in light of those changed circumstances. Clearly, appellants benefitted from the trial court's adaptability and patience. Therefore, they cannot now complain the trial court erred in considering DiCamillo's motion for summary judgment. For the foregoing reasons, appellants' first assignment of error is overruled. II. Appellants' second, third, fourth, fifth, sixth and ninth assignments of error are related; therefore, they are addressed together as follows: (2) APPELLEE RALPH DICAMILLO'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED FOR THE REASON THAT THERE WERE NUMEROUS ISSUES OF FACT AND LAW TO WHICH THE REASONABLE MAN COULD NOT COME TO A CONCLUSION IN FAVOR OF APPELLEE RALPH DICAMILLO WITHIN THE STANDARDS SET FORTH FOR RULING ON A MOTION FOR SUMMARY JUDGMENT. (3) THE ISSUE OF EVIDENTIARY QUALITY IS NOT AN ISSUE FOR THE COURT TO DECIDE, BUT RATHER FOR THE JURY TO DECIDE FROM DEMEANOR OF WITNESSES, ETC. (4) IT WAS AN ABUSE OF DISCRETION FOR THE COURT TO DETERMINE DEFENDANT'S STATEMENTS TO BE MORE BELIEVABLE OR RELIABLE THAN THOSE OF PLAINTIFFS WHEN BOTH APPELLANTS AND APPELLEE HAD SUBMITTED AFFIDAVITS WITH THEIR RESPECTIVE BRIEFS AND THE PARTIES' AFFIDAVITS CONTAINED STATEMENTS WHICH WERE DIRECTLY CONTRADICTORY ON ISSUES OF FACT CRITICAL TO THE CAUSE OF ACTION. (5) THERE WAS OTHER SUPPORTING EVIDENCE PRESENTED WITH APPELLANT'S BRIEF WHICH WAS INCONTROVERTIBLE (SIC) CONCERNING THE QUALITY OF APPELLEE'S WORK AND SUBSEQUENT DAMAGES CAUSED BY APPELLEE'S WORK WHICH THE COURT DID NOT CONSIDER WHEN RULING ON APPELLEE'S MOTION FOR SUMMARY JUDGMENT. -14- (6) THE COURT IMPROPERLY AND/OR FAILED TO ADDRESS (SIC) WHETHER APPELLANT'S CASE WAS PROPERLY THE SUBJECT OF THE OHIO CONSUMER SALES PRACTICE ACT, THE HOME SOLICITATION ACT, AND/OR THE CITED OHIO ADMINISTRATIVE CODE SECTION 109:4-3-05(D)(3). (9) THE COURT IMPROPERLY FAILED TO ADDRESS APPELLANT'S ALTERNATE THEORIES OF LIABILITY: NEGLIGENCE AND BREACH OF CONTRACT. In these assignments of error, appellants argue the trial court improperly granted summary judgment to DiCamillo on all of their causes of action against him. Civ.R. 56(C) makes summary judgment proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Civ.R. 56 also sets forth the type of documentary evidence which is necessary in order to support or oppose a motion for summary judgment. In ruling on a motion for summary judgment, therefore, a trial court is precluded from considering any documentary evidence of a type not specified in Civ.R. 56(C). Spier v. American University of the Caribbean (1981), 3 Ohio App.3d 28; see, also Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48. Thus, the assertion appellants make in their third assignment of error misses the mark. The issue of 5 This administrative code section was not cited in appellants' amended complaint. -15- "evidentiary quality" is not a matter for the jury; rather, it is a matter of law; the trial court is not determining credibility, but admissibility. Similarly, although appellants assert otherwise in their fifth assignment of error, the trial court was correct in refusing to consider the "supporting evidence" attached to appellants' brief in opposition to DiCamillo's motion for summary judgment, since it was neither incorporated by reference, authenticated, nor verified. See, e.g., Biskupich v. Westbay Manor Nursing Home (1986), 33 Ohio App.3d 220; cf., Internatl. Bd. of Elec. Workers v. Smith (1992), 76 Ohio App.3d 652; McKay v. Cutlip (1992), 80 Ohio App.3d 487. Moreover, appellants' affidavits themselves actually were inadequate pursuant to Civ.R. 56(E), since the affidavits: 1) did not affirmatively state that the averments contained therein were based upon appellants' personal knowledge; and 2) contained hearsay. Brannon v. Rinzler (1991), 77 Ohio App.3d 749; Penwell v. Taft Broadcasting (1984), 13 Ohio App.3d 382; cf. Pond v. Carey Corp. (1986), 34 Ohio App.3d 109. In connection with this observation, however, it must be noted that although the trial court considered appellants' affidavits and evidence in light of Civ.R. 56's requirements, only Cincinnati objected to them; DiCamillo did not. Logsden v. Ohio Northern Univ. (1990), 68 Ohio App.3d 190; cf., McKay v. Cutlip, supra. Indeed, DiCamillo cites appellants' affidavits in making his argument on appeal. Construing the statements made in appellants' affidavits most strongly in appellants' favor as required by Civ.R. 56(C), it is -16- obvious that appellants failed to produce sufficient evidence to support their causes of action based upon the consumer sales practices and home solicitation sales acts. First, appellants stated a cause of action pursuant to R.C. 1345.02(B)(1) and (2). The pertinent portions of that statute state: 1345.02 Unfair or deceptive consumer sales practices prohibited. (A) No supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction. Such an unfair or deceptive act or practice by a supplier violates this section whether it occurs before, during, or after the transaction. (B) Without limiting the scope of division (A) of this section, the act or practice of a supplier in representing any of the following is deceptive: (1) That the subject of a consumer transaction has sponsorship, approval, performance characteristics, accessories, uses, or benefits that it does not have; (2) That the subject of a consumer transaction is of a particular standard, quality, grade, style, prescription, or model, if it is not; However, neither of appellants' affidavits stated that DiCamillo made any representations concerning the subject of the transaction, i.e., the driveway installation. In DiCamillo's affidavit, he specifically stated he made no representations. Thus, there was no evidence to support this cause of action. Similarly, although appellants alleged DiCamillo committed a deceptive act in failing to comply with O.A.C. 109:4-3-05, they provided no evidence to contradict DiCamillo's statements made in his affidavit that both before and after his initial contact with -17- appellants, he did comply with the stated requirements of that 6 section. Appellants also alleged DiCamillo failed to comply with R.C. 1345.03(A) and (B)(1) and (6), which state: 6 The pertinent portions of O.A.C. 109:4-3-05 state: 109:4-3-05 Repairs or services (A) It shall be a deceptive act or practice in connection with a consumer transaction involving the performance of either repairs or any service where the anticipated cost exceeds twenty-five dollars and there has been face to face contact between the consumer or his representative and the supplier or his representative, prior to the commencement of the repair or service for a supplier to: (1) Fail, at the time of the initial face to face contact and prior to the commencement of any repair or service, to provide the consumer with a form which indicates the date, the identity of the supplier, the consumer's name and telephone number, the reasonably anticipated completion date and, if requested by the consumer, the anticipated cost of the repair or service. * * * * * * (9) Represent that repairs have been made or services have been performed when such is not the fact; * * * (G) In lieu of complying with the requirements of paragraphs (A), (B), and (C) of this rule, a supplier may provide a consumer, prior to the commencement of any repair or service, with a written quotation of the price at which the repair or service will be performed, which shall indicate that the quotation shall be binding upon the supplier for a period of five days, provided that the subject of the consumer transaction is made available to the supplier for the repair or service within that period. (Emphasis added.) -18- 1345.03 Unconscionable consumer sales practices. (A) No supplier shall commit an unconscionable act or practice in connection with a consumer transaction. Such an unconscionable act or practice by a supplier violates this section whether it occurs before, during, or after the transaction. (B) In determining whether an act or practice is unconscionable, the following circumstances shall be taken into consideration: (1) Whether the supplier has knowingly taken advantage of the inability of the consumer reasonably to protect his interests because of his physical or mental infirmities, ignorance, illiteracy, or inability to understand the language of an agreement; * * * (6) Whether the supplier knowingly made a misleading statement of opinion in which the consumer was likely to rely to his detriment; (Emphasis added.) A perusal of their affidavits, however, demonstrates that, again, nowhere do appellants set forth any facts to support this allegation. Furthermore, although appellants alleged a cause of action based upon the home solicitation sales act, R.C. 1345.21 et seq., the evidence proved the parties' actions fell outside the parameters of the act. According to the affidavits, after cancelling the initial contract with DiCamillo, appellants initiated a second contact in which they renegotiated the original terms of the contract; moreover, DiCamillo did not charge appellants for any extra work, thus, the act was inapplicable to -19- 7 the facts herein. See, e.g., Smaldino v. Larsick (1993), 90 Ohio App.3d 691; United Consumers Club v. Griffin (1993), 85 Ohio App.3d 210. Finally, however, appellants asserted cause of action in negligence, negligence per se, and breach of contract. When the statements made in appellants' affidavits are compared with those made in DiCamillo's, and then construed most strongly in appellants' favor as required by Civ.R. 56(C), it is clear genuine 7 The pertinent portions of R.C. 1345.21(A) state: 1345.21 Definitions. As used in sections 1345.21 to 1345.28 of the Revised Code: (A) "Home solicitation sale" means a sale of consumer goods or services in which the seller or a person acting for him engages in a personal solicitation of the sale at a residence of the buyer, including solicitations in response to or following an invitation by the buyer, and the buyer's agreement or offer to purchase is there given to the seller or a person acting for him, or in which the buyer's agreement or offer to purchase is made at a place other than the seller's place of business. It does not include a transaction or transaction in which: * * * (6) The buyer has initiated the contract between the parties and specifically requested the seller to visit his home for the purpose of repairing or performing maintenance upon the buyer's personal property. If, in the course of such a visit, the seller sells the buyer additional services or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the sale of those additional goods or services does not fall within this exclusion. (Emphasis added.) -20- issues of material fact remain on this case with respect to at least two of appellants' causes of action. Biskupich v. Westbay Manor Nursing Home, supra. First, there is no dispute in the evidence appellants had a contract with DiCamillo for the repair on their driveway. Furthermore, there is no dispute this contract, whether written or oral, involved not only repairs of the driveway, but replacement of one or more drainpipes. Appellants stated in their affidavits that after the completion of DiCamillo's work on their driveway, they experienced basement water problems which they later discovered were caused by DiCamillo's faulty installation of the drainpipes. DiCamillo successfully argued in the trial court that appellants' statements were insufficient to support their causes of action in negligence and breach of contract. This court disagrees. The duty to perform construction services in a workmanlike manner sounds in tort and is implied by law. Barton v. Ellis (1986), 34 Ohio App.3d 251, 518 N.E.2d 18. Ohio Historical Society v. General Maintenance & Engineering Co. (1989), 65 Ohio App.3d 139, 147. See, also, Tibbs v. National Homes Construction Corp. (1977), 52 Ohio App.2d 281; Lloyd v. William Fannin Builders, Inc. (1973), 40 Ohio App.2d 507; Mitchum v. Johnson (1966), 7 Ohio St.2d 66. Contrary to DiCamillo's assertion made in his appellate brief, the foregoing cases do not stand for the proposition that a cause of action upon contract precludes one in tort. See, e.g., Smaldino -21- v. Larsick, supra. Moreover, DiCamillo failed to state in his affidavit either that he had complied with the contract's terms or that he had completed the driveway repairs in a workmanlike manner. Therefore, there was sufficient evidence to present a jury question on appellants' claims for breach of contract and negligent workmanship. Ohio Historical Society v. General Maintenance & Engineering Co., supra; Mitchum v. Johnson, supra. With regard to a claim of negligence per se, however, a plaintiff must present evidence of the following: 1) there is a legislative enactment which imposes a specific duty upon the defendant for the safety and protection of a person in plaintiff's position; 2) the defendant failed to observe the enactment; and 3) this failure proximately caused plaintiff's injury. Taylor v. Webster (1967), 12 Ohio St.2d 53 at 56; Shroades v. Rental Homes (1981), 68 Ohio St.2d 20 at 25; Anderson v. Ceccardi (1983), 6 Ohio St.3d 110; Gressman v. McClain (1988), 40 Ohio St.3d 359. Although appellants asserted DiCamillo failed to comply with Maple Heights Codified Ordinance 1270.07, a perusal of that ordinance reveals it requires a contractor only to perform his services in a workmanlike manner. Thus, the following rule of law applies: Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application and liability must be determined by the application of the -22- test of due care as exercised by a reasonably prudent person under the circumstances of the case. Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, paragraph three of the syllabus. See, also, Steele v. McNatt (1995), 102 Ohio App.3d 558. Thus, based upon the foregoing analysis, the trial court erred in granting DiCamillo's motion for summary judgment only with respect to appellants' causes of action in negligence and for breach of contract. Appellants' second, fourth and ninth assignments of error are therefore sustained; appellants' third, fifth and sixth assignments of error are overruled. III. For reasons of logical order, appellants' eighth assignment of error is next addressed. THE CITY OF MAPLE HEIGHTS WAS IMPROPERLY GRANTED SOVEREIGN IMMUNITY THROUGH THE COURT'S MISINTERPRETATION OF THE STATUTORY LAW. In a conclusory manner, appellants argue the trial court erred in granting the City's motion for judgment on the pleadings; they contend the evidence was sufficient to prove the City was negligent in inspecting DiCamillo's work. To sustain a claim of negligence, one must first show the existence of a duty. See Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75. In the trial court, appellants argued the commonlaw "public duty" rule survived the enactment of R.C. 2744.01, et seq. However, R.C. 2744.02(A)(1) provides immunity to -23- political subdivisions in the performance of governmental functions; such immunity is subject only to delineated exceptions. See, e.g., Rahn v. Whitehall (1989), 62 Ohio App.3d 62 (motion to certify the record overruled (1989), 44 Ohio St.3d 709); Zellman v. Kenston Bd. of Edn. (1991), 71 Ohio App.3d 287. R.C. 2744.01(C)(2)(p) specifies the following as activities which are shielded by the doctrine of sovereign immunity: (p) The provision or nonprovision of inspection services of all types, including, but not limited to, inspections in connection with building, zoning, sanitation, fire, plumbing, and electrical codes, and the taking of actions in connection with those types of codes, including, but not limited to, the approval of plans for the construction of buildings or structures and the issuance or revocation of building permits or stop work orders in connection with buildings or structures; (Emphasis added.) When the legislature is specific, sovereign immunity is not abrogated. Thus, the "public duty" rule has been superseded. Amborski v. Toledo (1990), 67 Ohio App.3d 47; Smith v. Minnick (1990), 68 Ohio App.3d 619; Nagorski v. Valley View (1993), 87 Ohio App.3d 605; cf., Maust v. Meyers Products, Inc. (1989), 64 Ohio App.3d 310. Therefore, the trial court did not err in granting the City's motion since the City was immune from appellants' suit. Accordingly, appellants' eighth assignment of error is overruled. IV. Appellants' seventh and final assignment of error states: THE APPELLEE INSURED COMPANY (SIC) WERE IMPROPERLY DISMISSED OR GRANTED SUMMARY JUDGMENT WHEN THERE WAS -24- EVIDENCE PRESENTED WHICH SHOWED THAT THE INSURANCE COMPANIES WOULD POTENTIALLY BE LIABLE FOR JUDGMENT AMOUNTS AWARDED APPELLANTS AGAINST THEIR INSUREDS, RALPH DICAMILLO AND/OR THE CITY OF MAPLE HEIGHTS. Appellants present no argument with respect to their contention that Beacon was "improperly dismissed" from this case. On that ground, their assignment of error as to Beacon may be simply disregarded. App.R. 12(A)(2). Moreover, appellants have no standing to challenge Beacon's dismissal since they: 1) presented no claim against it in the trial court; 2) failed to object to Beacon's dismissal in the trial court; and 3) did not designate the order dismissing Beacon in their notice of appeal. Civ.R. 14(A); First Federal S. & L. Assn. of Akron v. Cheton & Rabe (1989), 57 Ohio App.3d 137; App.R. 3(D); Buckeye Union Ins. Co. v. Stiffler (1992), 81 Ohio App.3d 227; cf., Bushnell v. Mead Containers (1991), 72 Ohio App.3d 139. For the foregoing reasons, as it has requested in its appellate brief, Beacon is entitled to an award of costs and attorney fees from appellants pursuant to App.R. 23. Davis Montco Landfill Co. v. Jefferson Twp. Zoning Comm. (1993), 85 Ohio App.3d 494; cf., Talbot v. Fountas (1984), 16 Ohio App.3d 226. Having reviewed Beacon's participation in this appeal, the Court awards it $200.00 as attorney's fees. With regard to the award of summary judgment to Cincinnati, appellants argue this was improper. Apparently, they base this argument on the proposition they made in the trial court, viz., they were third-party beneficiaries of the bond executed by -25- DiCamillo as principal and Cincinnati as surety to the City. Appellants presented no Ohio law to the trial court to support this theory of liability; moreover, they present absolutely no law to this court to support their argument. Furthermore, in response to a similar contention, the court noted the following in Amborski v . Toledo, supra, at 52: It is well established that in order for a third party to seek enforcement of a promise ostensibly made for his benefit, it must appear that the contract was entered into directly or primarily for the benefit of the third person. See Cleveland Metal Roofing & Ceiling Co. v. Gaspard (1914), 89 Ohio St. 185, 106 N.E. 9. If the third person receives an incidental or an indirect benefit, that is not sufficient to provide him with a cause of action. As a result, a "stranger" may not intervene and claim the benefits of a contract between other parties. Id. (Emphasis added.) In this case, DiCamillo's promise to the City that he would comply with its ordinances provided appellants with only an indirect benefit. Clearly, neither DiCamillo nor Cincinnati had an intent to benefit appellants when the bond was executed. Therefore, the trial court properly granted Cincinnati's motion for summary judgment. Amborski v. Toledo, supra; Laverick v. Children's Hosp. Medical Ctr. of Akron (1988), 43 Ohio App.3d 201. Accordingly, appellants' seventh assignment of error is overruled. The judgment of the trial court is affirmed in part and reversed in part; this case is remanded for further proceedings consistent with this opinion. -26- This cause is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. Costs divided equally between plaintiffs-appellants and Ralph DiCamillo, d.b.a. D & D Cement, defendant-appellee. It is ordered the appellees The Cincinnati Insurance Company and the City of Maple Heights recover of appellants and Ralph DiCamillo their costs herein taxed. It is also ordered that appellee Beacon Insurance Company of America recover of appellants its costs herein taxed and attorney fees in the amount of $200.00 for which judgment is hereby rendered. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, P.J., and PATTON, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .